ATWOOD & ATWOOD
[2020] FamCAFC 153
•26 June 2020
FAMILY COURT OF AUSTRALIA
| ATWOOD & ATWOOD | [2020] FamCAFC 153 |
| FAMILY LAW – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – Provision of transcript – Factors relevant in support of an application for the provision of transcript at the Court’s expense – Whether there are merits in the grounds of appeal which justify the provision of transcript – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPLICANT: | Ms Atwood |
| RESPONDENT: | Mr Atwood |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3943 | of | 2014 |
| APPEAL NUMBER: | EA | 118 | of | 2019 |
| DATE DELIVERED: | 26 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (by telephone) |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 19 June 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 759 |
REPRESENTATION
| THE APPLICANT: | Self-represented |
| THE RESPONDENT: | Self-represented |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders made 19 June 2020
That the applicant be granted leave to make an oral application to dispense with Order 1.24 of the Procedural Orders made by the Regional Appeals Registrar on 28 April 2020.
That the applicant be permitted to proceed with her appeal without having included in the appeal books the transcript of proceedings 9, 10, 11 April 2018, 13 August 2018, 10 September 2018 and 16 November 2018.
That the Application in an Appeal filed 7 May 2020 otherwise be dismissed.
That the costs of the applications be costs in the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 118 of 2019
File Number: SYC 3943 of 2014
| Ms Atwood |
Applicant
And
| Mr Atwood |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Ms Atwood (“the mother”) seeks to appeal certain final parenting, property and costs orders made by the primary judge on 20 September 2019 (“the orders”).
In broad terms, the parenting orders provide for:
·Mr Atwood (“the father”) to have sole parental responsibility for the parties’ child, B, born 2006 (“the child”) (Order 2);
·that the child live with him (Order 1);
·the mother have no contact and spend not time with the child (Order 3); and
·for the father to cause the child to attend upon a family consultant for the purpose of having the orders explained to him (Order 7).
Various property orders were made in relation to the distribution of the proceeds of sale of the parties’ property at Suburb G (Orders 1–17), including for the parties to pay the costs of the Independent Children’s Lawyer (“ICL”) in the amount of $7,824.25 each (Order 11); and a superannuation splitting order in favour of the mother (Order 18). The mother was also ordered to pay one half of the father’s assessed costs of the proceedings (Order 13).
On 28 April 2020, the Appeals Registrar made orders to prepare the appeal for hearing, including an order that the applicant include in the appeal books, to be filed electronically, the transcript of the hearing held over six days on 9, 10, 11 April 2018, 13 August 2018, 10 September 2018 and 16 November 2018.
By an Application in an Appeal filed on 7 May 2020, the mother seeks an order that the Court pay for a copy of the consolidated transcript of the final hearing in order to prosecute her appeal. The mother contends that she cannot afford the cost associated with the provision of the transcript. The mother spoke with the transcript provider and she believes that the transcript might cost in the vicinity of $20,000. Although this seems unlikely, it is accepted that the transcript of a six day trial will run into thousands of dollars.
Background
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from his Honour’s reasons and the documents filed by the mother in this application.
At the time of the hearing the mother was 49 years of age and the father was 46 years of age. The parties met in 1999 and were married in 2002. The parties’ child was born in 2006. The parties separated on a final basis in 2014.
On 27 June 2014, the father commenced proceedings for both parenting and property settlement orders, including orders for equal shared parental responsibility and for equal time. On 3 November 2014 an order was made appointing an ICL to represent the child.
In June 2015, the child was removed from the mother’s care by the Department of Family and Community Services (“FACS”) [184].
At the final hearing, the father sought orders that he have sole parental responsibility for the child, that the child live with him and spend no time with the mother [2]. He sought an order for the proceeds of sale of the Suburb G property to be divided 80 per cent to him and 20 per cent to the mother. The mother sought a superannuation splitting order, 75 per cent of the proceeds of sale of the Suburb G property and other property orders. She did not seek any parenting orders other than “[the child] is months short of being 12. He advise his living situation” [5(4)]. The ICL sought parenting orders similar to those proposed by the father, as well as an order that the father facilitate the child’s engagement with an online resource ‘Children of parents with a mental illness’. The ICL also sought an order that each party pay the costs of the ICL in the amount ordered. Each party sought to waive those fees.
The final hearing was originally listed over four days commencing on 9 April 2018. The father was represented and the ICL was represented by Legal Aid NSW. The mother did not have legal representation.
At [25]–[26], the primary judge expressed some concern about the mother’s capacity to conduct her case but determined that the final hearing would continue as listed [27].
In relation to the parenting matters, his Honour had the benefit of an expert’s report dated 6 November 2015 and a supplementary report dated 5 April 2016 prepared by Dr H, a forensic psychiatrist. As well as evidence of Mr Q, who is a family consultant and who prepared a report dated 15 November 2017 and an addendum on 6 March 2018. His Honour concluded that it would be in the best interests of the child for the father to have sole parental responsibility of the child and for the mother to have no time with the child [177].
In relation to property proceedings:
· neither party proposed a balance sheet of any sort [212];
· the father provided no evidence about the orders he sought in relation to items of personalty [212]; and
· the mother failed to provide evidence of the balance of her superannuation [213]; or of an asserted debt owed to Y Bank [216].
On balance, his Honour concluded that “the contributions of the parties to superannuation to favour the [father] in the proportions 65 [per cent] compared to 35 [per cent] by the mother” [235]. In relation to non-superannuation assets, his Honour made the following findings:
249.There are many allegations made in these proceedings and it is difficult to be confident about the factual background. On the broad facts I assess the contributions of the parties to favour the father by a small margin. During the marriage the father made the greater financial contributions and they were balanced by the mother having the greater parenting load. After separation however, the mother had the use of the unit while the father had the parenting responsibilities for a longer period than the mother and he continued to make some financial contribution whereas the mother could not. I find that the father contributed 52.5 percent compared to 47.5 percent by the mother.
(As per the original)
His Honour was satisfied that there should be an adjustment of five per cent from each pool in favour of the mother by reason of her difficult mental health issues and the life-long effects this will have on her [284].
It is worth noting what his Honour said in relation to the conduct of the hearing and the father’s application for costs:
310.…There is no doubt that the mother’s conduct added to the costs of the proceedings. The mother could not provide a reliable address for service, was unable to attend or to remain at Court on many occasions and could not properly support her case by engaging with the father’s evidence or providing evidence in support of her own case. The parties were involved in 57 Court events over more than four years. Eight of the events involved a Family Consultant and 49 were in court. This was a case that commenced with the only parenting proceedings being the father seeking to spend some time with his son. They concluded with no workable proposal from the mother and the father’s application that [the child] live with him and spend no time with the mother. As to property settlement there was a very modest property pool but there was great difficulty in having the [Suburb G] unit sold and securing vacant possession. On any view these proceedings should have been resolved shortly after they were commenced and several years ago, with little or no legal costs.
The application for transcript
There is nothing within the Family Law Act 1975 (Cth) (“the Act”) or the Family Law Rules 2004 (Cth) (“the Rules”) which provides for a transcript to be obtained by the Court (see Forbes & Bream (2008) 222 FLR 96) (“Forbes”). In Forbes, the Full Court said at [28]:
From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court…
That is not to say that in exceptional cases the Court may provide a transcript if it was persuaded that it is necessary. The factors that need to be taken into account in exercising that discretion include the nature of the proceedings, whether the transcript sought is integral to the appeal, the financial circumstances of the applicant, and the prima facie merits of the appeal (e.g. see Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542 at [16]).
The applicant represents herself and has prepared the grounds of appeal. The grounds appear to assert that the primary judge made various errors of law. Nonetheless, the grounds do not identify any specific error other than it is asserted that the primary judge “erred on” various provisions of the Act and other legislative instruments.
As to the nature of the proceedings, the mother outlined in her Amended Notice of Appeal filed on 3 March 2020, under Part D that she seeks to challenge the parenting orders, including the order for sole parental responsibility; as well as the property orders. Under the heading ‘Attachment B’, she proposes what appear to be minor amendments to the parenting orders, including:
· to amend Order 3 which stipulates that the child spend no time with her, to include the words “unless instigated by [the child]”; and
· to amend Order 7 so that that father cause the child to attend upon the ICL, rather the family consultant, for the purpose of the orders being explained to the child.
The mother does not make any proposal as to the order for sole parental responsibility.
The remainder of the grounds concern the property and financial orders, as a consequence of which the mother seeks:
·to amend Order 13 so that that mother pay to the father’s solicitor the total of $1,000, being half of the costs for sale of the Suburb G property;
·to amend Order 13 so that each party pay their own legal costs; and
·to amend Order 18 so that she receive $192,519 by way of a superannuation splitting order.
In determining whether the Court should pay for a transcript, the nature of the proposed appeal needs to be taken into account. It cannot be said that the mother’s appeal challenges the care arrangements for the child in any substantial way, nor does it raise questions about risks to the child. The challenge seems to be based upon international covenants as to the rights of children. I agree with the submission of the ICL that as presently framed the challenge is unlikely to attract appellate intervention.
The property appeal challenges aspects of the orders but does not clearly indicate a sound basis for appellate intervention; perhaps that will emerge later but for present purposes it too does not seem to be on strong grounds. The lack of detail in relation to the grounds of appeal raised against the order as to costs has the same effect. It follows that it is difficult to see how the interests of justice would require the Court to provide a transcript at its expense.
As to the financial circumstances of the applicant, the mother asserts in her affidavit filed in support of this application that she is “a person of straw” as a result of financial domestic violence perpetrated against her (mother’s affidavit filed 7 May 2020, p.2 paragraph 1). The point being, that she is impecunious and her financial position has prohibited her from obtaining the full trial transcript. Although the mother provided little evidence as to her financial circumstances, the trial reasons show she is financially vulnerable and it is inferred she continues to rely on welfare payments.
I accept that cost associated with procuring six days of transcript is likely to be beyond the mother’s reach, for a considerable period of time. Even so, there have not been exceptional circumstances identified which would persuade the Court to pay for the trial transcript.
However, during exchanges at the hearing, the mother clarified aspects of her grounds of appeal and said she needed only a few pages which contain an exchange between the primary judge and those appearing concerning costs. Thus, the mother was given leave to make an oral application for permission to conduct her appeal without filing the trial transcript. Her application was unopposed and is granted.
The mother was advised she might make arrangements with the Registry Manager to listen to the audio recording of the trial so as to identify precisely where the exchange as to costs is located. At best, this will comprise a few pages and will cost little. The mother should be able to afford to pay this lesser sum.
I am content to review the Registrar’s decision and allow the mother to advance her appeal without provision of the transcript of proceedings at first instance. I take into account that the primary judge made extensive findings in relation to the oral evidence, none of which seem to be under challenge. It seems to me that the limited scope of the appeal lends itself to this course.
I will order accordingly and the application will thus be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 26 June 2020.
Associate:
Date: 26 June 2020